Friday, February 28, 2003

repeal the 17th Amendment?

The 17th Amendment to the US Constitution was ratified in 1913. This Amendment moved the power to appoint Senators to the US Senate from the state legislatures (where the Framers had originally placed it) to direct election by the general populace. Via Volokh, comes this fascinating and persuasive argument that the 17th Amendment should be repealed:

Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by the legislatures of the states. Each state would have two senators, while representatives would be apportioned based on population.

James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."

The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:

In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.

The system as designed by the framers was in place for a century and a quarter, from 1789 until 1913, when the 17th amendment was adopted. As originally designed, the framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.

...

...the true backers of the 17th amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel -- money.

These issues are especially interesting given the debate over the role of the Electoral College during the 2000 elections. I myself have noi problem with the Electoral College as an institution, but I strongly feel that the electors shoudl be assigned to candidates by district, not by plurality and winner-take-all. Unlike Democrats such as Hillary Clinton, I do NOT favor abolishing the EC entirely however. The idea of repealing the 17th Amendment appeals to me as well. I think that much of the fine-tuned balances of power that were carefully crafted by the Founders have been undone over time and this could account for a great deal of the malaise and domination of special interests in the system today.

As things stand today, it is the executive and judicial branches that wield the most power, not Congress, and that should alarm all of us. After all, Congress is where we, the electorate, wield our authority. It may be counter-intuitive, but returning the Senate to state legislatures (which are also directly elected by the people, on a local scale) will actually enhance our collective influence over our government.